A (a minor) -v- Refugee Appeals Tribunal
Neutral Citation: (2011) IEHC 373.
High Court
Judgment was delivered on October 7th, 2011, by Mr Justice Gerard Hogan.
Judgment
The member of the Refugee Appeals Tribunal did not make a balanced assessment of the threat to a six-year-old Nigerian girl, who is a member of the Yoruba tribe, of female genital mutilation (FGM), and therefore did not vindicate her constitutional right to the protection of her person when deciding to return her to Nigeria.
The deportation decision was quashed and sent back to the tribunal for fresh assessment.
Background
The applicant was a six-year-old girl born in Ireland in 2005 to Nigerian parents. She is not an Irish national.
Her mother’s asylum application was refused, as was her application for judicial review of the refusal, on the basis that she was out of time in bringing the review application. The merits of her application were not considered.
Mr Justice Hogan said the fact that the mother’s application was refused did not mean the minor’s application could not succeed, especially as the threat to a young girl of FGM was far greater than to adult females.
Referring to country of origin information on the practice of FGM in Nigeria, he said a Unicef survey had found that it affected about 60 per cent of the Yoruba people.
A British-Danish fact-finding report found that the federal police did not interfere because they considered this to be a family matter.
While it is possible that females who do not wish to be subjected to the practice could appeal to the Nigerian Human Rights Commission or the courts, “this could not be regarded as a realistic option in the majority of cases”, he said.
“It would seem that from the country of origin information that, in respect of some classes of females – and in some regions of Nigeria at least – state protection against FGM is either ineffective in practice or unavailable,” Mr Justice Hogan said.
The applicant’s mother had alleged that she and her daughter were at risk from her father-in- law, a Muslim imam, because she, a Christian, had married his son.
She claimed he had attempted to kidnap her and subject her and the girl to FGM.
The tribunal considered two issues: the threat from the father-in-law and the risk to the girl of FGM.
Decision
Mr Justice Hogan accepted the tribunal member’s assessment that the account of the threat from the father-in-law was implausible and said the member was entitled to reject this part of the claim.
In relation to the threat of FGM, the tribunal member concluded that a girl wishing to avoid it could contact the Nigerian Human Rights Commission and various non- governmental organisations.
Mr Justice Hogan said that the young girl was from the Yoruba tribe and the risk to females from this tribe was extremely high.
“The applicant is plainly entitled to be protected against a serious threat to her constitutional rights which would undoubtedly occur were she to be subjected to FGM following deportation to Nigeria,” he pointed out.
Any decision-maker should clearly identify and assess the nature of such risks and weigh them fairly and properly.
“Can it therefore be said that the tribunal member has sufficiently identified the risk to this young female in view of her vulnerable age and tribal membership?
“With great respect, I do not think one can,” he said.
In the absence of a balanced assessment of the risks, he considered that the tribunal member had not sufficiently discharged the State’s obligations under article 40.3.2 to protect and vindicate the applicant’s constitutional rights.
He quashed the decision to deport her and remitted the application for fresh consideration in the light of the judgment.
The full judgment is on courts.ie
Diarmuid Rossa Phelan SC and Killian McMorrow BL, instructed by AC Pendred Co, Dorset Street, Dublin, for the applicant; Eugene Regan SC and Anthony Moore BL, instructed by the Chief State Solicitor, for the Refugee Appeals Tribunal.